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WITTER v. ABELL-HOWE CO.

June 14, 1991

MICHAEL WITTER AND MARY WITTER, HIS WIFE, PLAINTIFFS,
v.
ABELL-HOWE CO., AMERICAN HOIST & DERRICK COMPANY, AND CROSBY GROUP, INC., DEFENDANTS.



The opinion of the court was delivered by: Skretny, District Judge.

  DECISION AND ORDER

INTRODUCTION

Now before this Court is defendant The Crosby Group, Inc.'s ("Crosby") motion to dismiss the Complaint pursuant to Fed.R. Civ.P. 12(b)(6) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56 ("motion") as to it.*fn1 Plaintiffs Michael Witter and Mary Witter (collectively "plaintiffs") have filed an opposition to Crosby's motion which includes a motion to strike the affidavit of James Christopher.

Because both parties have submitted affidavits and other statements beyond the pleadings which this Court has considered in ruling on the motion, pursuant to Fed.R. Civ.P. 12(b) this Court shall treat the motion as one for summary judgment under Fed.R.Civ.P. 56.

This Court has diversity jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332 and, therefore, New York law supplies the substantive rule of decision for this Court's application.

According to the Complaint, plaintiffs allege that Crosby negligently installed and maintained an overhead trolley crane which subsequently malfunctioned while plaintiff Michael Witter operated it, causing him severe injury. In Counts Three and Four of the Complaint, plaintiffs seek six million dollars damages for Crosby's negligent installation and maintenance of the crane and also damages against Crosby in strict products liability, respectively. In Count Five of the Complaint, plaintiff Mary Witter seeks one million dollars damages in consortium.

Moving to dismiss the Complaint as to it, Crosby denies any liability to plaintiffs for negligent installation or maintenance of the crane and, contending that it neither manufactured the crane itself nor any parts attached to it, also denies any strict products liability.

In support of its motion, Crosby has submitted a Notice of Motion; statement of material facts not in dispute ("Crosby fact"); a memorandum of law in support ("Crosby memo."); the affidavit of James Christopher ("Christopher"); the affidavit of William A. Gardner ("Gardner"); and the affidavit of Carl H. Berry ("Berry"). Crosby also has filed a reply brief ("Reply").

In support of its opposition to the motion,*fn2 plaintiffs have filed a Notice of Cross-Motion with exhibits; a statement of material facts in dispute ("pl. fact"); a memorandum of law ("pl. memo."); the affidavit of Michael Witter ("Witter"); and the affidavit of James Scime, Esq. ("Scime").

This Court has considered all these submissions, as well as oral argument held on March 5, 1991.

Conclusion: For the reasons set forth below, this Court grants Crosby's motion in its entirety and dismisses plaintiffs' lawsuit as against Crosby.

FACTS

The following material facts are not in dispute.

Plaintiff Michael Witter was employed as a millwright with Franbilt ("Franbilt"), a company in the steel fabrication business located in Lockport, New York. (Witter, ¶ 4).

Franbilt's plant is located at 210 Market Street, Lockport, New York. ("Market Street Building.") Appended to the inside of the Market Street Building is an overhead trolley crane ("crane") used to lift and move heavy items within the building. (See, Gardner, ¶ 5; Berry, ¶ 6;). ...


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